Raj Kumar Yadav vs The State of Uttar Pradesh

B.S. Chauhan and R.D. Khare, JJ.—This Special Appeal has been filed against the impugned judgment and order dated 22.04.2002 passed by the learned Single Judge by which he has rejected the claim of the petitioner on the ground that he was merely a temporary employee and has no right to hold the post. The learned Single Judge further held that even if a person is appointed on probation and unless an order in writing is passed for confirmation and he is continuing beyond the period of probation provided under the rules, he would not be deemed to have been confirmed automatically, merely because the probation period is over.

The facts and circumstances giving rise to this case are that the petitioner-appellant was appointed as a Constable in Provincial Arms Constabulary (hereinafter called the ''P.A.C.'') on temporary basis. No order of confirmation had ever been passed. The services of the petitioner-appellant were terminated after working for about seven years on the ground that his services were no longer required, vide order dated 14.09.1998. Being aggrieved, the petitioner-appellant filed Writ Petition No. 42766 of 1998, which has been dismissed by the order impugned dated 22.04.2002. Hence the present Special Appeal.

It has been submitted by the learned Counsel for the petitioner-appellant that under no circumstance, the petitioner-appellant could be removed from service merely on the ground that his services were no longer required, even if he was holding the post on temporary basis. Secondly, it has been submitted by the learned Counsel for the appellant that the petitioner-appellant had been appointed on probation, though no confirmation order had been passed, he would be deemed to have been confirmed after the period of confirmation was over.

Learned Standing Counsel appearing for the respondents has vehemently opposed the Special Appeal contending that the petitioner-appellant could not claim any right on the post and if his services were no longer required, he had rightly been removed. More so, if he was appointed on probation period and had not been confirmed after the expiry of the period of probation, that does not mean that he was deemed to have been confirmed. Therefore, he submitted that the appeal lacks merit and is liable to be dismissed.

We have considered the rival submissions made by learned Counsel for the parties and perused the record.

It is settled legal propositions that the person, who has been appointed on ad hoc basis with the conditions stipulated in his appointment letter, his services could be terminated in terms of the appointment letter. The petitioner does not have a right to claim any relief if his services are terminated in terms of the letter of appointment.

In State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, , the Apex Court has categorically held as under:

Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.

In a case like the instant, the Court has to be satisfied as what is the legally justiceable right of the petitioner which has been infringed and for which the petitioner can resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), has held that "A person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier" and further held that " a Government servant holding a post temporarily does not have any right to hold the said post." In Ravindra Kumar Misra Vs. U.P. State Handloom Corpn. Ltd. and Another, the Apex Court has taken the same view.

A temporary employee has no right to hold the post and his services are liable to be terminated without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary servants. Similarly, in Triveni Shankar Saxena Vs. State of U.P. and others, ; Commissioner, Food and Civil Supplies, Lucknow, U.P. and Another Vs. Prakash Chandra Saxena and Another, Ram Chandra Tripathi Vs. U.P. Public Services Tribunal IV and Others, Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, and Kaushal Kishore Shukla (supra), the Apex Court has categorically held that incumbent to a post who has been given appointment on temporary basis, terminable without notice, has no right to hold the post and he is not entitled for any opportunity of hearing before his services are dispensed with as his termination does not amount to forfeiture of any legal right.

In Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, , the Hon''ble Apex Court held that in such cases even principles of natural justice do not require to be observed. The Court placed reliance on the observations made in Malloch v. Aberdeen Corporation 1971 (2) All E.R. 1278, wherein it has been observed as under:

A breach of procedure, whether called a failure of natural justice or an essential administrative fault cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain.

In Life Insurance Corporation of India and Another Vs. Raghavendra Seshagiri Rao Kulkarni, , the Apex Court explained the difference of a permanent employee and an employee holding the post on probation and held that the services of a probationer cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. "This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to held a lien on that post." However, interpreting/enforcing the terms of appointment, which provided for discharge of the said probationer from service at any time during the period of probation or extended period of probation, without any notice or without assigning any cause, the Court held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard raising grievance.

In State of Punjab and others Vs. Surinder Kumar and others, the Apex Court has held that the court must seek the adherence to the terms and conditions of the appointment and there is no reason why terms and conditions of appointments cannot be enforced in a contract of service.

In Hindustan Education Society and another Vs. Sk. Kaleem Sk. Gulam Nabi and others, the Apex Court has held that where the rules specifically provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash Nagra Vs. Navodaya Vidyalaya Samiti and Others, , the Apex Court has held that a society can terminate the services not only of a temporary employee but also of a permanent employee by giving him one month''s notice or three months'' pay and allowances in lieu thereof if the terms of appointment and rules so permit and such termination may be valid in a given cases even if the principles of natural justice have not been complied with.

In Chandra Deo Gautam Vs. State of U.P. and Others, the Hon''ble Supreme Court held that the termination of services of temporary employee does not require interference on being removed on any ground as it does not cast any stigma or aspersion on him. In Nazira Begum Lashkar and Ors. v. State of Assam AIR 2001 SC 102, the Apex Court held that where appointment neither confers any right nor any equity in favour of the employee, as the appointment was purely temporary and could be terminated without notice, no grievance can be entertained by such employee. More so, he cannot claim any equitable relief from any Court.

Similar view has been reiterated in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, ; Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, Punjab State Electricity Board and Another Vs. Baldev Singh, 2001 (2) AWC 1291 (SC) Union of India (UOI) and Others Vs. A.P. Bajpai and Others, ; & Dhananjay Vs. Chief Executive Officer, Zila Parishad, Jalna,

It has further been held in these cases that termination of the services of the temporary employees under the relevant Rules does not cast any stigma and it remains termination simplicitor.

In Dr. (Mrs.) Chanchal Goyal Vs. State of Rajasthan, , the Apex Court held that a person appointed on a tenure post or temporarily or on ad hoc basis does not have right to hold the post even if the person who has regularly been appointed has not joined the post for the reason that the person next to him or from the waiting list in the regular selection would have a right to join the post and in all circumstances, a temporary or ad hoc employee has to vacate the post so that the regular selected candidate may join. Even if an employee continued for a long time, that does not crystallize into any enforceable right nor such an employee can claim any lien over the said post unless he stands regularised. While deciding the said case, a very heavy reliance had been placed on the earlier judgments in J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., & Dr. A.K. Jain and Ors. v. Union of India and Ors. (1987) SCC 497.

In Union of India (UOI) and Others Vs. Harish Balkrishna Mahajan, , the Apex Court reiterated the law laid down in State of U.P. and Others Vs. Dr. Deep Narain Tripathi and Others, , observing that mere continuation for a long time by an ad hoc or temporary employee does not give him any legal right to hold the post.

In Nazira Begum Lashkar (supra), the Apex Court held that temporary or ad hoc appointment does not confer any legal right nor such an appointee can claim equity in his favour nor the equitable relief can be granted to him by the Court. Even if, he has worked for unusual long period, even on humanitarian considerations.

A person holding the post of temporary/ad hoc post is not a member of service in accordance with the statutory rules, therefore, he cannot have any right vested in the post. (Vide P.D. Aggarwal and Others Vs. State of U.P. and Others, Similar view has been reiterated in cases where the person was holding the tenure post by the Hon''ble Apex Court observing that by efflux of time appointment comes to an end automatically on expiry of the tenure of appointment, and such appointee cannot claim any relief either on the basis of equity, or human consideration or in law. (Vide Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, ; and State of U.P. and Another Vs. Dr. S.K. Sinha and Others, The only relief/protection in law an ad hoc appointee can claim is that he should not be replaced by another ad hoc as held by the Hon''ble Apex Court in Dr A.K. Jain and Others Vs. Union of India (UOI) and Others, Associate Banks Officers'' Association Vs. State Bank of India and Others, and State of Haryana and others Vs. Piara Singh and others etc. etc.,

Therefore, the law on the issue can be summarised as under:

An ad hoc appointment means a stop gap arrangement. The appointment is defeasible, and thus, incapable to create any legal right in favour of the appointee for the reason that such an appointment is made in administrative exigency, pending regular appointment, in public interest. As ad hoc appointment is made in public interest considering the administrative necessity, temporarily, or to meet a temporary necessity for a specific purpose, an ad hoc appointee cannot have any grievance whatsoever as he is not deprived of any right or interest vested in the post. He cannot claim to be a member of the service in accordance with the rules. The only protection law gives to an ad hoc appointee is, not to be replaced by another ad hoc appointee. Thus, he has to make accommodation to the regular appointee whenever he comes to join.

In the instant case, the order impugned dated 14.09.1998 by which the services of the petitioner-appellant had been terminated, reveal that the petitioner-appellant had been appointed on temporary basis under the provisions of the U.P. Government Servants (Termination of Service) Rules, 1975. This case is squarely covered by the judgment of the Hon''ble Supreme Court in Kaushal Kishore Shukla (supra).

So far as the second issue is concerned, the appellant has not placed the order of appointment and even if it is assumed that he was appointed on probation, he cannot be deemed to have been confirmed after the period of probation was over in the absence of any order of confirmation is passed.

The law on the issue is well settled that the question of deemed confirmation would arise provided there is a complete embargo to extend the period of probation. If an employee is not confirmed by specific order of confirmation, he shall not be deemed to have been confirmed automatically. This law has been laid down by a Constitution Bench of the Hon''ble Supreme Court in State of Punjab Vs. Dharam Singh,

Similar view has been reiterated by the Hon''ble Supreme Court in Dhanjibhai Ramjibhai Vs. State of Gujarat, ; Om Parkash Maurya Vs. U.P. Cooperative Sugar Factories Federation, Lucknow and Others, M.K. Agrawal v. Gurgaon Gramin Bank and Ors. : [1987]3SCR640 ; Mool Chand v. U.P. Food Corporation and Anr. 1996 FLR 258; Sri Chandra v. U.P. Financial Corporation 1994 Lab.I.C. 859; Jai Kishan v. Commissioner of Police and Anr. 1995 SCCSuppl 3 364 : Satya Narayan Athya Vs. High Court of M.P. and another, and State of Punjab Vs. Baldev Singh Khosla,

In Dayaram Dayal Vs. State of M.P. and another [OVERRULED], . a similar view has been reiterated observing that the deemed confirmation of a probationer depends on the order of appointment and the rules applicable in the case of said employee. Mere continuance in service of an employee beyond the maximum period up to which the probation period could be extended, shall not give entitlement to him to have been deemed confirmed. While decide the said case, the Hon''ble Supreme Court considered its earlier judgment in Sukhbans Singh Vs. State of Punjab, wherein it was held as under;-

A probationer cannot...automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result, The rules governing the Provincial Civil Services of Punjab do not contain any provision whereby a probation at the end of the probationary period is automatically absorbed as a permanent member of the Civil Service.

The Supreme Court also considered the Constitution Bench Judgement of the Hon''ble Supreme Court in G.S. Ramaswamy and Others Vs. Inspector-general of Police, Mysore, : and State of Uttar Pradesh Vs. Akbar Ali Khan,

In C.V. Satheeshchandran v. General Manager, UCO Bank and Ors. (2008) SCC 653, the Hon''ble Supreme Court held that merely because the probation period is over, his service cannot be deemed to have been confirmed as it required specific order directing confirmation and it will be only in special circumstances where the rules specifically provides for deemed confirmation, he will not be considered to have been confirmed,

In the instant case, the learned Counsel for the appellant has not produced the relevant rules applicable in the case of the petitioner-appellant. Therefore, no finding can be recorded on the issue.

In view of the above, the appeal lacks merit and is accordingly dismissed.